The motions hearing next Tuesday has taken somewhat of a new direction. In a Second Amended Notice of Hearing (as to Motions to be heard), filed May 26 by J. Cheney Mason provided an update to the motions list.
The first motion, the Motion to Seal Jail Visiting Log Records, is left over from the May 10 hearing. You can read more about that motion in my previous article.
The second motion is the Defendant's Motion for Reconsideration of Certain Prior Rulings by Disqualified Judge, filed May 6. While this was on the original agenda, the section of the motion dealing with TES documents will not be heard. Mark NeJame filed a Notice of Conflict with the court on May 24. He explained that he had received the notice of the hearing the previous Friday. He further stated that his family had a pre-planned vacation for the June 1 date. NeJame made it quite clear that he was not consulted about the setting of this date.
4. This aspect of the case regarding the Subpoena Duces Tecum is of a civil nature and therefore the Civil Administrative Policies and Procedures state under Section 11(b)(2) states. If at all possible, hearing time for complex motions or several motions to be heard at one time should be cleared with all affected counsel as to avoid calendar conflicts. This policy was clearly not followed by the counsel for the Defendant. Moreover, local custom has long established that out of professional courtesy that the opposing cousnes be contacted to coordinate a mutually convenient or available time. This was not done by Mr. Mason who scheduled the hearing.
Towards the beginning of the case when Jose Baez began filing motions and failed to notice parties to a motion, I called them "rookie mistakes". I can't say this for Mr. Mason, who has a long history as one of central Florida's outstanding attorneys. For the life of me, I don't understand why such "slip-ups" keep happening in this case. Clearly, the defense wants the documents. I have to wonder why they would fail to coordinate dates with the attorney who is representing the organization in possession of them?
In the meantime, we will hear arguments as to why the judge should give the defense a copy of George Anthony's testimony before the Grand Jury. The State had asked for this last fall in order to find inconsistencies in his testimony and later deposition. The defense filed a motion to join in that which was never addressed by Judge Strickland.
It will be interesting to listen to any objections the State may have.
The defense will again try and have Joseph Jordan's illegally made audio unsealed. Judge Strickland had ruled it was not necessary since the defense's own PI, Mort Smith had his notes from the meeting and could directly testify to the contents of the tape.
Finally, they want those 7,000 tips from the beginning of the case. I don't know if these tips could be considered discovery. One thing I do know is that the OCSO followed up many credible tips which were reported in discovery on an ongoing basis. It looks to me like another hunting expedition.
Next up will be the Motion to Strike State's Notice of Aggravating Circumstances, filed by the defense May 20. The defense is not happy with Jeff Ashton's reply which was filed with the court on May 13, two days after ordered to do so by Judge Perry.
If you read the judge's order, it says,
The Court agrees with the defense that this issue implicates Defendant's due process rights, and in the exercise of its discretion, the Court requires the state to provide notice of the aggravating factors it intends to prove. In view ofthe potentially unlimited list of possible mitigating factors, the Court will not require the defense to provide a reciprocal list.
That's all it says. It does not state that the prosecution has to provide the information on what information they will use to develop the content of these aggravating factors.
I was somewhat amused by paragraph 4 in the motion.
4. On May 14, after the state failed to serve the defense with a copy of the Notice, the defense learned through the media that the state had filed its Notice of Aggravating Circumstances. The notice provided that the state may rely on five aggravating circumstances...
If true, I'm wondering if someone on the prosecution team made the same little boo-boo the defense has made more than once? OH MY GOODNESS! I can still remember waiting for the four motions found on a tv site at least two weeks before they were even filed in court! Let's remember, this motion was filed by Jose Baez, himself!
He also complains that the prosecution MAY use these aggravating circumstances. Let's see, it's just about eleven months until this case goes to trial and we can be sure it is still under investigation. The prosecution could change its mind about one of them. They may learn of others during the further investigation.
Let's remember that Perry ordered the prosecution to give a list, he didn't have to order that. He ordered the list because "death is different". In addition, there is no law that says the judge has to order the prosecution to give a list of particulars.
I don't know if Perry will grant this motion. However, since the trial is so far out, there is still a lot of investigation going on. If those jail house letters Casey wrote can be incorporated into the case, who knows what other information may come out over the next eleven months!
The Supplemental Motion to Compel Forensic Discovery, was filed May 20 as a response to Judge Perry's instructions at the May 10 hearing. At that time, the defense had a hard time going through their lists and coming up with the material that was missing. In this motion, they have simplified the issues to make them more manageable.
Jeff Ashton wrote the State Response to Supplemental Motion to Compel Forensic Discovery. Complete with charts, he makes many of the same arguments he has been making all along.
Concerning all the defense requests, he states that
The State of Florida's discovery obligations are set forth in Fla. Rule Crim. Proc. 3.220(b). Sub section (I)(J) of that rule limits the obligations as they concern expert witnesses to "reports and statements of experts made in connection with the particular case, including results of physical and mental examinations and of scientific test, experiments, or comparisons". None of the documents contained in Excel Chart 1 or 2 fall within this rule.
The requested documents in Chart One are not alleged to be in the possession of the State of Florida or any of its agencies. As the undersigned has stated on numerous occasions over the two year history of this case any document desired and in the possession of an individual or entity outside of the State of Florida must be obtained thru contact with the individual or entity in possession of that document.
Ashton adds that the State has been helping the defense get documents such as these, but cannot be ordered to do so.
The second chart contains material that the defense can get on their own, according to Ashton. It is his position that
...any order requiring the state to obtain and produce a document, not specifically required to be produced by 3.220(b)(I)(J), should be contigent upon a proper motion and showing pursuant to 3.220(f) and a demonstration that the Defendant cannot obtain the document themselves thru request or an application under F.S.119.
It sound to me as though Mr. Ashton has gotten tired of facilitating the defense in obtaining all those documents! What the judge will say, I have no clue.
So, for those of you who haven't already started your long holiday weekend and read this, do have a wonderful Memorial Day and remember those who have given their lives to defend our country.